Employment Law Daily Accessing employee files to help employer defend EEOC charges was not protected activity
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Thursday, September 14, 2017

Accessing employee files to help employer defend EEOC charges was not protected activity

A manager who accessed the files of other employees without permission—allegedly in an effort to defend against allegations lodged by two of those employees in EEOC charges—had his Title VII retaliation claims tossed out because he had not engaged in protected activity. Even if he had engaged in a protected activity, his breach of the employer’s computer access policy provided a legitimate reason for termination and he failed to show that this reason was pretextual, the district court held, granting summary judgment in the employer’s favor (Knight v. Slippery Rock University, September 12, 2017, Bissoon, C.).

EEOC charges by other employees. The employee was the parking manager of a university police department. While previously assigned to a different position, he had an IT technician assign him administrator rights to his department’s computer server, enabling him to access individual officers’ folders. Two employees in the department filed discrimination claims with the EEOC based on allegations against the parking manager, and he received litigation hold letters from the employer’s internal legal counsel.

Manager accessed their files. Thereafter, he accessed computer files belonging to other members of the department, including the individuals who filed the EEOC charges and the assistant chief. Although he was never told to access these folders, he claimed he was told to provide information that would help the university with the lawsuit. He showed his supervisor a document he found in one of the folders, and this prompted an investigation into how he accessed the files. A forensic computer examiner was retained to investigate this breach of computer privacy. Following the investigation, the parking manager was terminated. He filed a retaliation suit under Title VII, alleging that the university fired him for participating in an investigation of charges filed with the EEOC.

No protected activity. Finding that the complaining employee was not fired for engaging in what he “reasonably believed” was protected activity under Title VII, the court granted summary judgment for the employer. The employee conceded that he was participating in the EEOC investigation in support of his employer, the court noted; therefore, he could not claim a “reasonable belief” that he was engaged in an activity protected by the statute.

Legitimate reason for discharge. The court found that the employer was fired for violating the employer’s computer use policy by inappropriately accessing other employees’ files. Even if he were engaged in a protected activity when he accessed the files, the policy violation was a separate, nonretaliatory reason for termination. Nothing he presented could lead a reasonable fact finder to question that he was fired for inappropriately accessing the files of other employees, the court said.

Not similarly situated. The employee asserted that the university’s proffered reasons for firing him were pretextual because similarly situated persons were treated more favorably. He argued that a janitorial employee and the department chief who had entered other employees’ desks were not terminated. However, these employees were not similarly situated, the court found. Violation of the computer policy was different than opening a desk. Additionally, a janitor’s level of accountability with respect to confidentiality was not comparable to the parking manager’s responsibilities, and the department chief had acted on advice of counsel when he accessed an employee’s desk.

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